Citation Nr: 0107108
Decision Date: 03/09/01 Archive Date: 03/16/01
DOCKET NO. 00-04 320 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Houston,
Texas
THE ISSUE
Whether new and material evidence has been submitted to
reopen the claim of service connection for post traumatic
stress disorder (PTSD).
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
Artur F. Korniluk, Associate Counsel
INTRODUCTION
The veteran had active military service from August 1965 to
August 1967. This matter comes to the Board of Veterans'
Appeals (Board) from the Department of Veterans Affairs (VA)
Houston Regional Office (RO) November 1998 rating decision
which denied service connection for PTSD.
The record shows that service connection for PTSD was denied
by RO rating decisions in October 1992 and January 1993. No
timely appeal from those rating decisions was filed.
Accordingly, the most recent decision in January 1993 is
final, and is not subject to revision on the same factual
basis. It may, however, be reopened on submission of new and
material evidence. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R.
§§ 3.104(a), 3.156(a) (2000). Although the November 1998
rating decision (now on appeal) denied service connection for
PTSD on a de novo basis, the Board must conduct an
independent review of whether new and material evidence has
been submitted to reopen the previously disallowed claim.
Barnett v. Brown, 8 Vet. App. 1 (1995), aff'd, 83 F.3d 1380
(Fed. Cir. 1996).
FINDINGS OF FACT
1. Service connection for PTSD was most recently denied by
RO rating decision in January 1993; no timely appeal
therefrom was filed, with the result that the January 1993
decision became final.
2. Portions of the evidence received in support of the
application to reopen the claim of service connection for
PTSD, furnished since the January 1993 RO rating decision,
are new, relevant, and probative of the issue at hand.
CONCLUSION OF LAW
Evidence submitted since the January 1993 RO rating decision
denying service connection for PTSD is new and material, and
the claim is reopened. 38 U.S.C.A. §§ 5107, 5108, 7105 (West
1991); 38 C.F.R. §§ 3.104(a), 3.156(a) (2000).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Service connection for PTSD was denied by RO rating decisions
in October 1992 and January 1993, based on findings that the
medical evidence of record did not reveal a clear diagnosis
of the disorder, and the evidence did not demonstrate that
stressful in-service events warranted such diagnosis. No
appeal from those decisions was filed by or on behalf of the
veteran. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103 (2000).
Thus, the January 1993 RO rating decision denying service
connection for PTSD constitutes the most recent final
decision with regard to that claim. Accordingly, it must be
determined whether new and material evidence has been
submitted since that decision. See Evans v. Brown, 9 Vet.
App. 273 (1996).
A final RO rating decision is not subject to revision on the
same factual basis, but may be reopened on submission of new
and material evidence. 38 U.S.C.A. § 5108; 38 C.F.R.
§§ 3.104(a), 3.156(a); Evans, 9 Vet. App. at 285.
Whether new and material evidence is submitted is a
jurisdictional test, with reopening of a claim required if
such evidence is submitted, and reopening prohibited if such
evidence is not submitted. Barnett, 83 F.3d at 1383-84. See
also Winters v. West, 12 Vet. App. 203, 206 (1999), rev'd on
other grounds, sub nom. Winters v. Gober, 219 F.3d 1375 (Fed.
Cir. 2000). In addressing whether new and material evidence
has been submitted, the Board must review the evidence before
VA at the time of the last final decision, identify any
additional evidence now before VA, and determine whether that
additional evidence is both new and material. If so, then
the claim will be reopened. If not, analysis must end, as
the Board lacks jurisdiction to further review the claim.
Barnett, 83 F.3d at 1383-84.
Under applicable regulation, "new and material evidence" is
defined as evidence not previously submitted to agency
decision makers which bears directly and substantially upon
the specific matter under consideration, which is neither
cumulative nor redundant, and which by itself, or in
connection with evidence previously assembled, is so
significant that it must be considered in order to fairly
decide the merits of the claim. 38 C.F.R. § 3.156(a); see
also Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998); Fossie v.
West, 12 Vet. App. 1 (1998).
In Hodge, the U.S. Court of Appeals for the Federal Circuit
(Federal Circuit) noted that not every piece of new evidence
is "material," but that some new evidence may well
contribute to a more complete picture of the circumstances
surrounding the origin of a veteran's injury or disability,
even where it will not eventually alter a rating decision.
Id., 155 F.3d at 1363. In determining whether evidence is
new and material, the credibility of the evidence is
generally presumed. Justus v. Principi, 3 Vet. App. 510
(1992).
With these considerations, the Board must now review all of
the evidence which has been submitted by the veteran or
otherwise associated with the claims folder since the RO
rating decision in January 1993.
Evidence of record at the time of the January 1993 RO rating
decision included the veteran's service records, none of
which showed any report or clinical finding indicative of
PTSD. His records show that he served with the 120th
Aviation Company in Vietnam from February 1966 to February
1967; his military occupational specialty was helicopter
mechanic. He is not shown to have sustained any combat
wounds or injury and was not awarded any combat decorations;
he did, however, receive the Air Medal and Air Crewman Badge.
VA and private medical records from August 1990 to October
1992, including VA psychiatric examination in September 1992,
document intermittent treatment for psychological symptoms
and impairment. During this period of treatment (and
including September 1992 VA psychiatric examination), a
confirmed diagnosis of PTSD was not indicated, but during
outpatient treatment in April 1992, the veteran's treating
psychiatrist indicated that PTSD and PTSD-related impairment
were present; he appears to have linked the onset of the
disorder to the veteran's combat-related stressors in
Vietnam. During treatment and at the examination in
September 1992, the veteran provided general information
relative to the nature of his in-service duties and the
claimed in-service stressors.
Evidence submitted since the last final RO rating decision in
January 1993 includes VA medical records from August 1990 to
April 2000 (portions of which were previously of record, as
discussed above), documenting treatment for various symptoms
and illnesses, including the veteran's variously manifested
psychological/psychiatric impairment.
In February 2000, the veteran provided detailed information
relative to the nature, circumstances, and dates of
occurrence of his claimed in-service stressors, including
participation in various combat and combat-type support
missions as a helicopter crewman, transporting casualties of
combat, and being in Saigon during the "worst mortar attack
ever" on the city in March 1966. He indicated that he had
symptoms including nightmares, flashbacks, depression,
irritability, suicidal and homicidal ideation, and intrusive
thoughts and recollections relating to his Vietnam service.
Based on the foregoing, the Board concludes that the newly-
submitted evidence, discussed above, is material to a
reopening of the veteran's service connection claim in that
it includes evidence that must be considered in order to
fairly decide the merits of the claim. Although parts of the
newly-furnished evidence are merely duplicates of evidence of
record in January 1993, and other parts are merely cumulative
of evidence of record at that time (consisting of records of
continuing psychiatric treatment), portions of the newly-
submitted evidence are clearly new and material and must be
considered to decide the merits of the veteran's claim. In
particular, the veteran's February 2000 detailed account
relative to the nature, circumstances, and date of occurrence
of his claimed in-service stressors giving rise to PTSD and
PTSD-related symptoms, are supported by the available service
records (showing that he was a helicopter mechanic, serving
in Vietnam at the time he said he did). Given the nature of
the veteran's claim, and presuming credibility of his own
contention consistent with Justus, 3 Vet. App. 510, the Board
finds that there is new and material evidence sufficient to
reopen the claim of service connection for PTSD.
ORDER
New and material evidence having been submitted in support of
the claim of service connection for PTSD, the claim is
reopened.
REMAND
Effective November 9, 2000, the law provides that VA shall
make reasonable efforts to assist the veteran in obtaining
evidence necessary to substantiate his claim for benefits,
except that no assistance is required if there is no
reasonable possibility that such assistance would aid in
substantiating the claim. Veterans Claims Assistance Act of
2000, Pub. L. No. 106-475, § 3(a), 114 Stat. 2096 (2000) (to
be codified at 38 U.S.C.A. § 5103A(a)).
In the case of a claim of service connection for PTSD, if the
evidence establishes that the veteran engaged in combat with
the enemy and the claimed stressor is related to that combat,
in the absence of clear and convincing evidence to the
contrary, and provided that the claimed stressor is
consistent with the circumstances, conditions, or hardships
of the veteran's service, the veteran's lay testimony alone
may establish the occurrence of the claimed in-service
stressor. 38 U.S.C.A. § 1154(b) (West 1991); 38 C.F.R.
§ 3.304(f) (2000).
Where a veteran did not engage in combat with the enemy, or
where the claimed stressor is unrelated to combat, his
uncorroborated testimony, by itself, is insufficient to
establish the occurrence of the alleged stressor. Instead,
the record must contain service records or other credible
supporting evidence to corroborate his testimony as to the
occurrence of the claimed stressor. Dizoglio v. Brown,
9 Vet. App. 163, 166 (1996); West v. Brown, 7 Vet. App. 70
(1994); 38 C.F.R. § 3.304(f).
In this case, the veteran's claimed in-service stressors
involve combat-type situations, consisting of his having
participated in various combat and combat support missions as
a helicopter crewman, transporting numerous combat
casualties, and being in Saigon when the city was attacked by
the enemy in March 1966 (characterized by the veteran as the
"worst mortar attack [on the city] ever"). However, his
service records do not indicate that he had any combat
service. Accordingly, his own testimony regarding the
occurrence of the claimed stressors is insufficient to
establish that such stressors did in fact occur as described;
the occurrence of such stressors must be supported by service
records or other supporting evidence.
The record indicates that the RO never attempted to verify
the occurrence of the stressors alleged by the veteran to
have occurred during his Vietnam service. Thus, further
development of the evidence with regard to the claim of
service connection for PTSD is necessary for a well-informed
resolution of the claim. The diagnosis of PTSD, indicated
during post service psychiatric treatment, appears to have
been made in reliance on reports of exposure to stressors the
occurrence of which has not been verified; thus, it is
imperative that the occurrence of the alleged in-service
stressors be verified.
Consequently, the case is REMANDED for the following action:
1. The RO should review the file and
prepare a summary of all claimed
stressors from service. An attempt at
verifying the stressors must be made
through all available sources, to
include contacting the U.S. Armed
Services Center for Research of Unit
Records (USASCRUR) at 7798 Cissna Road,
Suite 101, Springfield, Virginia 22150-
3197. If referral to the USASCRUR or
other pertinent sources is to no avail,
the RO should advise the veteran to
submit alternate forms of evidence to
support his claim of service connection
for PTSD in compliance with the
notification requirements in Dixon v.
Derwinski, 3 Vet. App. 261, 263-64
(1992). All attempts to obtain the
records should be documented in the
claims folder.
2. Only if exposure to in-service
stressors is verified, then the veteran
should be scheduled for a VA psychiatric
examination to identify his symptoms and
determine the diagnoses and etiology of
all psychiatric disorders that are found
to be present. The examination report
must reflect a review of pertinent
material in the claims file. If PTSD is
diagnosed, the examiner should specify
(1) the factors relied on to support the
diagnosis; (2) the specific stressor(s)
that prompted the diagnosis; and (3)
whether there is a link between the
current symptomatology and one or more
of the in-service stressors. The report
of examination should include the
complete rationale for all opinions
expressed. All necessary special
testing should be accomplished. The
claims folder must be made available to
the examiner for review in conjunction
with the examination. If the examiner
notes the presence of any coexistent
psychiatric disability, an opinion
should be provided as to whether such
psychiatric disability is causally
related to service.
3. The RO should carefully review the
examination report and the other
development requested above to ensure
compliance with this remand. If any
development requested above is not
accomplished, remedial action should be
undertaken. Stegall v. West, 11 Vet.
App. 268 (1998).
If the benefit sought on appeal is not granted, the veteran
and his representative should be provided a supplemental
statement of the case and afforded an opportunity to respond.
The case should then be returned to the Board for review.
The veteran has the right to submit additional evidence and
argument on the matter remanded to the RO. Kutscherousky v.
West, 12 Vet. App. 369 (1999).
J. F. Gough
Member, Board of Veterans' Appeals